creative commons

Since my last post, I have come across a page written by someone who was an eyewitness to the events: The Edge of the Creative Commons, by Brent Laabs. He validates my criticism and also offers some additional information about when and why the change from BY-SA to BY-NC-SA happened. Well worth reading.

I’ve submitted this as a story to Techdirt, and I’m contacting others. Let’s see if I can make a fuss over this.

In my previous post, I noted that TV Tropes used to be available under a BY-SA license, but then they changed to a BY-NC-SA license. I consider this a bad move, of course, but after I finished my post, another thought occurred to me: what if it’s illegal?

To understand why this would be illegal, you’ve got to know a few things about Creative Commons licenses and how they work. First off, they are supposed to be irrevocable. Consider the following excerpts from the BY-SA legal code:

Subject to the terms and conditions of this License, Licensor hereby grants You a worldwide, royalty-free, non-exclusive, perpetual (for the duration of the applicable copyright) license to exercise the rights in the Work…

The above rights may be exercised in all media and formats whether now known or hereafter devised. The above rights include the right to make such modifications as are technically necessary to exercise the rights in other media and formats….

Subject to the above terms and conditions, the license granted here is perpetual (for the duration of the applicable copyright in the Work). Notwithstanding the above, Licensor reserves the right to release the Work under different license terms or to stop distributing the Work at any time; provided, however that any such election will not serve to withdraw this License (or any other license that has been, or is required to be, granted under the terms of this License), and this License will continue in full force and effect unless terminated as stated above.

The code is long and boring to read, but the parts I just quoted seem pretty clear that the license lasts as long as the copyright. This doesn’t mean that TV Tropes can’t re-release stuff under the BY-NC-SA license, but it does mean that everything is still covered by the more liberal BY-SA license. This is why All The Tropes has the right to take all of TV Tropes’s old stuff and repost it under the BY-SA license. So, at the very least, it is misleading for TV Tropes to imply that none of their current content is covered by BY-SA.

But there’s a deeper problem than that. It comes down to a question of “ownership”. The Creative Commons legal code notes that the “Licensor” reserves the right to release the Work under different license terms. So the question is: who is the proper “Licensor” for TV Tropes’s content?

If TV Tropes, LLC, is the proper “owner” of the content in question, then they do have the right to relicense their stuff, although I question the ethics of doing so. But I don’t think they can call themselves the “owner” of most of their content! Their current administrative policy is to take “irrevocable ownership…with all rights surrendered” of everything they receive, but some of their older administrative pages say nothing about that at all! In other words, TV Tropes simply cannot claim to own the copyrights on anything submitted to them before they changed their policy, which happened in November 2013. If TV Tropes does not own that stuff, then the contributors (and there are a lot of contributors) still have the rights to it, according to the Berne Convention. They gave TV Tropes permission to use it under the BY-SA license, but that doesn’t include the right to relicense their contributions under the BY-NC-SA license! Did the legions of contributors ever explicitly give TV Tropes permission to relicense their work? If not, then TV Tropes is violating the BY-SA license, and by so doing, they lose their rights under that license, meaning that they lose the rights to use the work at all! Their relicensing the content to BY-NC-SA is a massive act of infringement, and they had better pay up – or else!

Of course, it’s been nearly a year since TV Tropes started claiming irrevocable ownership, and over two years since they started marking everything as BY-NC-SA. Why hasn’t anything bad happened to them yet? I believe it is because of the inherent weakness of Creative Commons licenses: they rely on copyright for their power, and copyright is not a tool for the masses. Copyright is now, as it has ever been, a tool for the few to oppress the many. Expecting it to come through in our favor is a foolish proposition, and everyone who does so (including Creative Commons) has made the fatal mistake of believing hype over substance.

But perhaps I am being too pessimistic. Time will tell. In the meantime, I intend to probe this issue further, and see if we can’t actually use these licenses to put some pressure on TV Tropes. Maybe I’m a fool, but I know that large organizations live and die by the words on paper, and there are cases on the books of the lowly bringing down the haughty using the law. Wish me luck.

P.S. For a good bit of reading on the trouble with copyright, check out this essay: ‘Balanced’ Copyright: Not A Magic Solving Word, by Alan Story (and some good follow-up on Techdirt). I’ll have to give that essay a more thorough reading later, but for now, let me just say that I fully agree with Alan Story’s suggestion to “burn Berne”.

All of you who are reading this are probably already familiar with TV Tropes, the great wiki of the elements of fiction. It’s a fun resource, and a powerful time sink. But there’s a problem with it, and from my vantage point as a free culture fanatic, it’s a big problem: the license.

TV Tropes uses Creative Commons’s BY-NC-SA license. This license means that you can copy and modify the content however you want, but subject to these four conditions:
1. You must give proper attribution to the content creator (BY)
2. You must not use it commercially (NC)
3. You must make your content available under the same license (SA)
4. You must not add any DRM to what you make (this is standard in all Creative Commons licenses)

Now, conditions 1 and 4 are great by me, and condition 3 wouldn’t be so bad, except for condition 2. That’s actually a very profound restriction, dictating how someone can use the information. While conditions 1, 3, and 4 just tell you what you must do when you use it, condition 2 tells you how you must use it. This is a broad restriction, and not a very helpful one.

But there’s an even better argument against the NC provision, especially since TV Tropes is a wiki: the most popular wiki of all doesn’t use it! Wikipedia’s license is BY-SA, commercial reuse fully allowed. It doesn’t seem to have harmed Wikipedia at all, and it makes Wikipedia’s content more useful to the world. Curiously enough, TV Tropes used to be available under the BY-SA license, as this archived page shows. Why did they change? I can’t say for sure, but I suspect it was because they wanted more control over the submissions they were getting. Wikipedia notes here that TV Tropes even changed their terms of use to demand total ownership of user contributions.

Well, some folks weren’t happy about the change, and they decided to do something about it. Taking advantage of the freeing nature of the BY-SA license, these folks took TV Tropes’s stuff and forked it, creating a new tropes wiki: All The Tropes (also available on Wikia). All The Tropes offers folks a place to give and receive truly free content when discussing culture, creating a repository of knowledge and opinion that’s available for anyone to use for any reason, commercial or not. There is no top-down control, nor top-down censorship, and they even use better software to run their wiki. Seriously, check the place out.

So, the next time you want to discuss some incredibly overused cliche, or some element of fiction that seems to be everywhere you look, or some magnificent moment in fiction that was just so awesome, forget the control freaks over at TV Tropes. Go to All The Tropes instead. Choose freedom. You’ll be glad you did.